Superior Court of Justice

NEWMARKET COURT FILE NO.: FC-04-18706-02

DATE: 20200826

ONTARIO

BETWEEN:

Marc James Carter

Applicant

– AND –

Deborah Elizabeth Carter

Respondent

Counsel:

Self-Represented, for the Applicant

J. Cox, Counsel for the Respondent

HEARD: August 26, 2020 (teleconference)

MOTION DIRECTIONS

JARVIS J.

[1] In April 2020, the respondent (“the wife”) brought an urgent motion to annul a 2016 assignment in bankruptcy by the applicant (“the husband”) and, in the alternative, consolidating the bankruptcy proceedings with the parties’ family law proceedings. The motion and supporting material were served on the husband, his Trustee in Bankruptcy and the Superintendent of Bankruptcy. None responded. Paragraph 6 of the Ruling released on April 29, 2020[^1] provided as follows:

(a) The Trustee (Gregory Judd) shall not distribute any of the assets of the bankrupt until further Order of the Court;

(b) The Trustee shall provide to all creditors of the bankrupt, including the wife, a complete and detailed accounting of the bankrupt’s assets, including all assets received and realized and disposition of funds by May 29, 2020;

(c) The wife shall serve on the bankrupt’s Trustee, the Superintendent of Bankruptcy and Canada Revenue Agency copies of all Orders and Rulings made in this matter from and after the Order of Sutherland J. dated February 6, 2019 and shall electronically file with the court an affidavit of service afterwards; and

(d) Any party may seek further directions from me when it is made known when the courts will re-open and the range of permitted matters expanded to include the relief sought by the wife in her motion.

[2] A teleconference was held on August 26, 2020. Counsel for the Trustee (Ms. Jane Martin, acting as agent) and for the Department of Justice (Ms. Surksha Nayer) participated. Although notified by the court offices of the date, time and details for the teleconference, the husband did not participate.

[3] There is a case conference in the family law proceedings scheduled for September 29, 2020 (before Kaufman J.). A date for oral argument of the wife’s motion has apparently been set for September 20, 2020. This Ruling will deal with structuring the wife’s proposed motion. Ms. Martin and Ms. Nayer indicated that they, particularly Ms. Nayer, needed copies of all the material upon which the wife would be relying and that they would need time to deliver their responding material.

[4] Shortly after the teleconference concluded, Mr. Cox’s offices confirmed service on the Trustee and the Department of Justice of copies of all the endorsements and Orders made in these proceedings from and after February 6, 2019. Ms. Martin indicated that she needed about two weeks to deliver her client’s responding material: Ms. Nayer indicated that she would require about three weeks for the delivery of her client’s material. Ms. Martin raised a concern about notice of the wife’s motion dealing with the husband’s bankruptcy being served on the husband’s creditors to which Mr. Cox referred the court to a decision of Tzimas J. in Blatherwick v. Blatherwick.[^2] Rule 88(1) of the Bankruptcy and Insolvency General Rules[^3] deals with applications to annul an assignment in bankruptcy and mandates the service requirements. It is not necessary, in my view, that the wife serve the husband’s creditors: she only needs to comply with the service requirements of the rule.

[5] The following is ordered:

(a) The Trustee shall deliver its materials in response to the wife’s motion by September 10, 2020;

(b) The Department of Justice shall have until September 16, 2020 to deliver its responding materials;

(c) The husband shall have until September 16, 2020 to deliver his responding materials;

(d) The wife shall have until September 23, 2020 to deliver any reply;

(e) Facta are required. These shall be filed by September 30, 2020 and limited to ten pages, exclusive of appendices identifying relevant statutory authorities and an index of relevant caselaw. Books of authorities (if any) shall be separately filed by the deadlines set out above;

(f) The parties shall comply with the Notice to the Profession and Family Law Litigants (Central East Region) effective June 26, 2020 dealing with motion material (#19) and Orders sought (#21). The court accepts as filed the material that accompanied the wife’s April 2020 motion;

(g) The date of September 30, 2020 for oral hearing of the motion is vacated. The motion shall proceed in writing after compliance with the above directions;

(h) The husband shall be served with the parties’ materials referenced in (a), (b), (d) and (e) above; and

(i) In the event that further directions are required or issues should arise involving delivery of any party’s material, the judicial assistant (Meghan.Billings@ontario.ca) may be contacted on notice to the other parties to arrange a teleconference.

[6] A copy of this Ruling shall be forwarded to the husband by court administration.

Justice David A. Jarvis

Date: August 26, 2020

[^1]: 2020 ONSC 2683. [^2]: 2014 ONSC 1433. [^3]: C.R.C. 368, as amended.